BEST PRACTICES IN KENYA ON INVESTIGATION AND PROSECUTION
OF CORRUPTION AND RELATED OFFENCES, ASSET RECOVERY AND
INTERNATIONAL COOPERATION
Judy Bliss Thuguri*

I. INTRODUCTION
The promulgation of the Constitution of Kenya 2010 (the Constitution) was the beginning of a new dawnin Kenya as it established independent institutions and commissions crucial in the fight against corruption
and economic crimes.
The Constitution binds all persons and State Organs in government1 and incorporates international laws
through adoption of the general rules of international law, treaties or conventions ratified as part of the law
in Kenya.2 For this reason, the United Nations Convention against Corruption (UNCAC) ratified by Kenya on
9 December 20033 forms part of the laws of Kenya by virtue of the Constitution. Other international laws
ratified by Kenya relevant in the fight against corruption are the United Nations Convention Against
Transnational Organized Crime ratified on 5 June 20054 and the African Union Convention on Prevention
and Combating Corruption (AUCPCC) ratified on 7 March 2007,5 among others. In addition to the Constitutional
provisions, there are legal frameworks in Kenya that provided for the standards, measures and rules to be
implemented in the fight against corruption.
This paper will examine these legal frameworks, best practices and challenges faced in Kenya in thecourse of investigation and prosecution of corruption cases and more so in identifying, tracing, freezing,seizing, confiscation and recovery of proceeds of crime.

II. THE OFFICE OF THE DIRECTOR OF PUBLIC PROSECUTIONS (ODPP)The ODPP is an independent office established under the Constitution mandated to exercise State powers
of prosecution. The Office is headed by the Director of Public Prosecutions (DPP) who under the Constitution
exercises state power of prosecution and may:6
i. Direct the Inspector-General of the National Police Service to investigate any offence or allegation of
criminal conduct, which the Inspector General is obligated to comply with.
ii. Institute and undertake any criminal proceedings against any person before any court (other than acourt martial) in respect to any offence allegedly committed.
iii. Take over and continue any criminal proceedings instituted against any person before any court(other than a court martial) that is instituted by another person or authority.

*

Principal Prosecution Counsel, Office of the Director of Public Prosecutions, Kenya.
Constitution of Kenya 2010, Article 2(1).
2Ibid, Article 2(5) and (6).
3
http://kenyalaw.org/treaties/treaties/129/United-Nations-Convention-against-Corruption
4
http://kenyalaw.org/treaties/treaties/142/United-Nations-Convention-against-Transnational-Organized5
http://kenyalaw.org/treaties/treaties/38/African-Union-Convention-on-Preventing-and-Combating
6
The Constitution of Kenya 2010, Article 157.
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iv. Discontinue with leave of court, at any stage before judgment is delivered, any criminal proceeding
instituted or taken over by the DPP.
Other powers and functions of the DPP pursuant to Article 157 of the Constitution are to:7
i. Promote appropriate standards of practice by public prosecutors, assistant prosecutors, and any otherperson exercising prosecutorial authority under the ODPP Act.
ii. Implement an effective prosecution mechanism so as to maintain the rule of law and contribute to fairand equitable criminal justice and the effective protection of citizens against crime.
iii. Cooperate with the National Police Service, investigative agencies, the courts, the legal profession andother Government agencies or institutions so as to ensure the fairness and effectiveness of publicprosecutions.
iv. Set the qualification for the appointment of prosecutors.
v. Review a decision to prosecute, or not to prosecute, any criminal offence.
vi. Advise the State on all matters relating to the administration of criminal justice; andvii. Do all such other things as are necessary or incidental to the performance of its functions under theConstitution, the ODPP Act or any other written law.
The DPP in exercise of his or her powers and function shall not require the consent of any person or
authority in commencing criminal proceedings or be under the direction or control of any person or authority.8
A. Department of Economic, Organized and International Crimes
The ODPP is structured into six departments that specialize in different areas for effective service
delivery. The Department of Economic, Organized and International Crimes is mandated to prosecute cases
related to economic, international and emerging crimes. The Department has the following thematic divisions:i. Anti-Corruption and Economic Crimes Division
ii. Anti-Money Laundering and Asset Forfeiture Divisioniii. Banking and Financial Crimes Division
iv. International, Transnational and Organized Crimes Division
v. Counter Terrorism Division
vi. Land and Environment Division
The mandate of the Department includes:i. To prosecute all corruption and economic crimes investigated by the Ethics and Anti-Corruption
Commission (EACC) and the Directorate of Criminal Investigations (DCI).
ii. To advise and give directions to the EACC and the DCI over the investigations of corruption andrelated offences.
iii. To prepare and submit to the National Assembly of Kenya an annual anti-corruption report as provided
under section 37 of the Anti-Corruption and Economic Crimes Act.
7
8

Office of the Director of Public Prosecutions Act 2013, Section 5(4).
The Constitution of Kenya 2010, Article 157 (10).

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iv. To provide legal and policy guidelines to other agencies on Anti-Corruption and other related matters.
v. To undertake research and make recommendations on the status of policies and laws relevant tocorruption regarding economic crimes.

III. INVESTIGATIVE AGENCIES ON ANTI-CORRUPTION, MONEY-LAUNDERING
AND PROCEEDS OF CRIME
The main investigative agencies in Kenya that conduct investigations into these cases are:
A. Ethics and Anti-Corruption Commission (EACC)
The EACC is established under the Ethics and Anti-Corruption Commission9 pursuant to Article 79 of
the Constitution which is mandated among other functions to develop a code of ethics, promote standards
and best practices in integrity and anti-corruption for State officers, investigate and recommend to the DPPcases of acts of corruption, bribery, economic crimes or violation of codes of ethics prescribed in law, andinstitute and conduct proceedings in court for recovery or protection of public property, or for freezing or
confiscation of proceeds of crime related to corruption.
B. Directorate of Criminal Investigations (DCI)
The DCI is established under the National Police Service of Kenya10 mandated to among other functions
undertake investigations on serious crimes including homicide, narcotic crimes, human trafficking, moneylaundering, terrorism, economic crimes, piracy, organized crime and cybercrime among others.11
Following the establishment of the EACC in 2011, questions were raised on whether the DCI caninvestigate anti-corruption cases, which led to various petitions being instituted in the High Court challenging
investigations conducted by the DCI on anti-corruption cases. This question has since been settled withcourts finding that investigation carried out by the DCI and recommendations made thereby to the DPPcannot be faulted on account of not having been conducted by the EACC as the DCI are also mandated toinvestigated economic crimes under section 35(b).12
C. Asset Recovery Agency (ARA)The Asset Recovery Agency13 is mandated to conduct investigations into suspected cases of moneylaundering, confiscate and conduct criminal and civil forfeiture of proceeds of crime or unexplained assets
suspected to have been acquired through crime.

IV. LEGAL FRAMEWORK GOVERNING ANTI-CORRUPTION AND
MONEY-LAUNDERING IN KENYA
A. The Proceeds of Crime and Anti-Money Laundering Act (POCMLA)14
The Act was enacted in 2009 to provide for offences of money-laundering and the identification, tracing,
freezing, seizing and confiscation of proceeds of crime. Section 2 of the Act defines proceeds of crime as:

9

Act No. 22 of 2011.
National Police Service Act No. 11A of 2011 of the Laws of Kenya, Section 28.
11Ibid, section 35(b).
12Michael Sistu Mwaura Kamau & 12 others v Ethics and Anti-Corruption Commission & 4 others [2016] eKLR; Philomena
Mbete Mwilu v Director of Public Prosecutions & 3 others; Stanley Muluvi Kiima.  (Interested Party); International Commissionof Jurists Kenya Chapter (Amicus Curiae) [2019] eKLR;Daniel Ogwoka Manduku v Director of Public Prosecutions & 2others [2019] eKLR.
13
Proceeds of Crime and Money Laundering Act No. 9 of 2009 of the Laws of Kenya, Section 53.
14
Act No. 9 of 2009.
10

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Any property or economic advantage derived or realized, directly or indirectly, as a result of orin connection with an offence irrespective of the identity of the offender and includes, on a
proportional basis, property into which any property derived or realized directly from the offence
was later successively converted, transformed or intermingled, as well as income, capital or othereconomic gains or benefits derived or realized from such property from the time the offence wascommitted.
It further defines property to mean:
all monetary instruments and all other real or personal property of every description, including
things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere,
whether tangible or intangible, and includes an interest in any such property and any such legal
documents or instruments evidencing title to or interest in such property.
The common predicate offences in this Act are provided for under Section 3, 4, 5 and 7 of the Act, which
provides for the offences of money-laundering, acquisition, possession or use of proceeds of crime, failure toreport suspicious transactions related to proceeds of crime and financial promotion of an offence. The Act
covers a broad range of offences encountered in Kenya and provides for prosecution of financial institutions
that failing to report suspicious transactions and persons who act as intermediaries in transporting,transmitting or transferring property suspected to be proceeds of crime.
B. Anti-Corruption and Economic Crimes Act (ACECA)15
The Act was enacted in 2003 with the aim of providing for the prevention, investigations and offences on
corruption, economic crimes and other related offences. The Act defines corruption as offences amounting tobid rigging, dealing with suspect property, bribery, fraud, embezzlement or misappropriation of public funds,
abuse of office, breach of trust or offences of dishonesty connected to tax, rate or impost levied under any
Act.16
Common predicate offences encountered in Kenya are provided for under section 42, 45, 46, 47, 47A of theAct, which provides for offences of conspiracy to commit offences involving corruption or economic crimes,
conflict of interest, wilful failure to comply with applicable procedures of law, fraudulent acquisition of public
property, abuse of office and dealing with suspect property.
C. Bribery Act17
This Act provides for the prevention, investigation and offences related to bribery. The most common
offences under this Act are provided for under section 5 and 6 of the Act which provides for offences on
giving and receiving of a bribe. The Act further provides for measures on protection of whistle-blowers
which cautions against intimidation or harassment of persons who provide information to law enforcement
institutions or testimony in court. Further, it provides for the offences against persons who harass or
intimidate whistle-blowers or witnesses in regard to offences under the Act or persons who disclose
information of informants and or witnesses causing the said informants or witnesses to be harassed or
intimidated.18
D. Public Procurement and Asset Disposal Act19
The Act provides for the procedures of public procurement and asset disposal for public entities. This
Act plays a crucial role in identification of offences arising from breach of procurement laws by public
officers.

15

Act No. 9 of 2009 of the Laws of Kenya.
Ibid, section 2.
17
Act No. 47 of 2016 of the Laws of Kenya.
18
Ibid, section 21.
19
Act No. 33 of 2015 of the Laws of Kenya.
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V. INVESTIGATIONS INTO THE IDENTIFICATION TRACING FREEZING,SEIZURE AND CONFISCATION OF PROCEEDS OF CORRUPTION IN KENYA
A. Identifying and Tracing Proceeds
1. Reporting of Suspicious Financial Transactions
As provided under Article 14 of UNCAC, Kenya has enacted legislation to enhance financial reporting of
suspicious transactions as a measure to detect and prevent money-laundering. The Financial Report Centre(FRC) is mandated to assist in the identification of proceeds of crime and money-laundering.20 FRC receives,
analyses and interprets reports of suspicious transactions made by reporting institutions and upon review of
the reports, if the Director-General finds that there are reasonable grounds to suspect that the transactions
involve proceeds of crime or money-laundering, the Director-General refers the matter to the investigative
agencies for investigation.21
Reporting institutions such as banks and designated non-financial businesses are required by law toreport all suspicious transactions to FRC. Currently, it is a mandatory requirement for all financial institutions
to report any cash transactions of Kenya shillings (Ksh.) 1,000,000 and above and provide supporting evidence
on the nature and reasons of the transactions by their respective clients.22 Failure to report suspicioustransactions by financial institutions or natural persons required by law to report such transactions is anoffence in Kenya punishable to an imprisonment of a fine not exceeding ten million Kenya shillings or theamount of the value of the property involved in the offence, or for a natural person, imprisonment for a term
not exceeding seven years or a fine not exceeding two million, five hundred thousand shillings or both.23
A case study on reporting of suspicious transactions in Kenya is the case of Family Bank Limited & 2
Others -vs- Director of Public Prosecutions & 2 Others.24 A brief background of this case was that sometime
between 2014 to 2016 large sums of money estimated at Ksh. 791,385,000 were illegally paid from the
Ministry of Public Service, Youth and Gender Affairs State Department for Public Services and Youth tobank accounts operated by one Josephine Kabura, a sole proprietor of several companies to wit Reinforced
Concrete Technologies, Home Builders and Roof and All Trading held in Family Bank Limited.
Large cash withdrawals were then made by the said Josephine Kabura with no explanations for the large
cash transactions where Family Bank Limited failed to report these transactions. Upon investigations being
conducted by the DCI, the DPP was satisfied that Family Bank Limited contravened the reporting obligations
under section 44 of POCAMLA among others and was criminally liable for the offence of failure to reportsuspicious or unusual transactions or activities related to money-laundering or proceeds of crime contrary tosection 44(2) as read with section (5) and 16(2) of the POCAMLA. Recommendations were therefore made forcharges to be instituted against the responsible bank officials.
The Bank through a Constitutional Application No. 488 of 2016 sort for conservatory orders to prohibit
the DPP from prosecuting its officials for the stated offences. However, the high court dismissed the said
application where the bank filed an appeal against the said ruling. The appeal was subsequently dismissedby the Court of Appeal.
2. Acquiring and Analysing Objective Evidence
The ODPP by virtue of Article 157(4) of the Constitution and section 5(b) of the ODPP Act mentioned
above works closely with investigative agencies by either giving advice or conducting prosecution led
investigations. The role of the ODPP in the course of such investigations is to ensure that the evidence
acquired follows the money trail from its source to beneficiaries of the proceeds of crime. Secondly, the
ODPP ensures that the evidence acquired is admissible in court by meeting the evidentiary thresholdprovided in the Evidence Act on admissibility of electronic records25 and the Guidelines on the Decision to20

Proceeds of Crime and Anti-Money Laundering Act No.9 of 2009, section 21.
Ibid, section 24.
22
Ibid section 44.
23
Ibid section 5 as read together with section 16(2).
24[2018] eKLR.
25
Cap 80 of the Laws of Kenya, Section 106B.
21

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charge. The ODPP in analysing the evidence acquired applies the “follow the money approach” to ensure thateach layer on the movement of money from one point to the other is followed to identify all suspects andbeneficiaries of the proceeds of crime.
Investigative agencies are also equipped with experts specialized in different fields such as financial
analysis, ICT and forensic document examiners who identify and extract information relevant to the areasof investigations and prepare forensic reports. The ODPP also engages experts trained in various fields suchas fraud, finance and procurement to guide on areas of focus in cases of money-laundering and proceeds ofcrime to ensure that the Office prosecutes its cases effectively and efficiently with high chances of success.
3. Acquiring Suspect/Witness Statements
In Kenya, there is no legal framework in place on admissibility of evidence acquired through undercover
operations. The same, however, is information that is acquired through intelligence by the National Intelligence
Service (NIS) or the FRC, where upon review of the information, the intelligence services have reasons tobelieve that a crime has been committed, the same is forwarded to the investigative agencies for investigation.
The aim is to ensure that information acquired through intelligence is converted into evidence admissible incourt.
In Kenya, the law provides for the protection of informers whether from intelligence services or civilian.26
This is in tandem with the Constitution, which provides for protection of witnesses and enactment oflegislation providing for the protection, rights and welfare of victim of offences.27 In line with this requirement,
the Witness Protection Agency is established under section 3A of the Witness protection Act,28 whose
mandate is to provide protection to witnesses referred to them either by investigative agencies or the DPP.
This function is extended to protection of Victims under the Victim Protection Act.29
A case study relevant to protection of witnesses is in the case of H.E Hon. Mbuvi Gidion Kioko Mike
Sonko & Others -vs- DPP & Others. In this case, the ODPP in collaboration with the EACC and Witness
Protection Agency acquired orders to protect all witnesses including experts due to reports received on
threats and intimidations of witnesses most of whom were employees of the organization under investigation.
Aggrieved by this decision, Hon. Mike Mbuvi Gidion Kioko Mike Sonko filed an application before the High
Court for review of the witness protection orders.30 In the said application, the Applicant argued that thewitness protection orders interfered with his rights to a fair hearing guaranteed under Article 50 of theConstitution of Kenya. The High Court in its ruling dismissing the application held that:In determining the issues herein, the first issue of paramount importance is that of the position of
witness protection. Article 50 in its various sub-articles guarantees an accused person the right tofair hearing. At sub-article 2(c) and (d), the right to adequate time and facilities to prepare adefence, and the right to public trial before a court established under the constitution, which
seems to be the contested rights in this application are clearly anchored. At sub-article 8, theconstitution states, thus:‘This article does not prevent the exclusion of the press or other members of the
public from any proceedings if the exclusion is necessary, in a free and democraticsociety, to protect witnesses or vulnerable persons, morality public order or national
security.’
The deduction that I reach from all these are that whereas Article 50 of the Constitution
guarantees and declares the right to fair hearing for an accused person, the same article alsodeclares that the same right guaranteed may be limited where it is justifiable, for the protectionof witnesses, vulnerable persons, morality, public order or national security.
26

Anti-Corruption and Economic Crimes Act No. 3 of 2003 of the Laws of Kenya, section 65; Proceeds of Crime and Money
Laundering Act No. 9 of 2009 of the Laws of Kenya, Section 20; Bribery Act No. 47 of 2016 of the Laws of Kenya, section 21.
27
The Constitution of Kenya 2010, Article 50(8) and (9).
28
Act No. 16 of 2006 of the Law of Kenya.
29
Act No. 17 of 2014 of the Laws of Kenya.
30
High Court Anti-Corruption and Economic Crimes Miscellaneous Case No. 23 of 2020.

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However, in the case of Director of Public Prosecution -vs- The Chief Magistrate Court Milimani AntiCorruption Division & 18 Interested Parties31 the DPP sort for review of orders of the trial court directing
the DPP to supply a chronology of calling the witnesses accompanied by a list of documents that each
witness will be relying on to the defence 7 days in advance to the hearing and any change to be communicatedto the parties 3 days before the hearing.
The DPP in seeking review of these orders argued inter alia that the Learned Magistrate erred in law
by failing to consider that its duty not only lied in guaranteeing the rights of accused person to fair hearing
under Article 50 of the Constitution, but to also safeguard the rights of witnesses and victims under Article
50(9) of the Constitution on grounds that disclosing the order in which the witnesses would testify prior tothe hearing would put the witnesses at risk of intimidation or interference as the witnesses were not under
witness protection.
The court in its ruling, however, disagreed with the position of the DPP and found that the directions to
supply a “chronology of witnesses” was necessary in the circumstance of the case and that in regard to thesafety of the witnesses, the court was not persuaded that the directions shall expose them to danger.
The ODPP in developing its strategies for handling anti-corruption established the Victim and Witness
Facilitation Unit intended to facilitate costs incurred by witnesses scheduled to testify in court.
It is an offence to give false information to the FRC or an authorized officer punishable by imprisonment
for a term not exceeding two years or a fine not exceeding one million shillings or both.32 In addition, under
ACECA, it is an offence to obstruct or hinder, assault or threaten a person conducting investigations under
the act, deceive or knowingly mislead the commission, destroy, alter or conceal or remove documents,
records or evidence that is relevant to an investigation or make false accusation to the commission.  Such aperson is liable on conviction to a fine not exceeding Kenya shillings five hundred thousand shillings or to
imprisonment for a term not exceeding five years or both.33
In regard to plea bargaining, the same is provided for under section 137A-O of the Criminal Procedure
Code.34 In 2019 the ODPP launched the ODPP Plea Bargain Guidelines to guide prosecutors on the bestpractices and application of the plea bargaining provisions. In addition to plea bargaining, the ODPP also has
the Diversion Policy Guidelines also launched 2019.
Further, there is the Anti-Corruption and Economic Crimes (Amendment) Bill, 2021 that is currently
pending before the senate that seeks to amend the Anti-Corruption and Economic Crimes Act to provide forthe procedure of entering into deferred prosecution agreements. The same is targeted at dealing withoffences arising from corruption or economic offences which include offences under POCAMLA. If passed,
the same will allow the DPP to enter into Deferred Prosecution Agreement in considering prosecution ofalleged offences of corruption and economic crimes.
This provides alternatives to prosecution in regard to offences under POCAMLA and addresses thechallenges faced in identifying persons to be charged on behalf of artificial persons such as the financial
institutions. Two cases relating to plea bargaining are:(a) Republic vs Family Bank Limited and 7 Others35
The brief background as provided above is that Family Bank and its senior managers were charged
under the Proceeds of Crime and Anti-Money Laundering Act No. 9 of 2009, with several counts of failing toreport suspicious transactions and abetting money-laundering involving the National Youth Service
transactions. The matter was concluded under plea bargain where the Court recorded the plea agreement,
convicted them and fined Family Bank a total of Kshs. 64.5 million.
31

High Court Anti-Corruption and Economic Crimes Division Application No. E005 of 2021.
POCAMLA No. 9 of 2009 of the Laws of Kenya, section 10 as read with section 16.
33
ACECA No. 3 of 2003 of the Laws of Kenya, section 66(1) and (2).
34
Cap 75 of the Laws of Kenya.
35
Anti-Corruption Case No. 306 of 2016.
32

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RESOURCE MATERIAL SERIES No. 115(b) Republic vs Jackson Mbute Mbugua and 5 Others36
The accused persons were jointly charged with conspiracy to defraud the Government of L.R. No.
209/16441 which was allocated to the then City Council of Nairobi for use by Racecourse Primary School.
Prior to the hearing of the matter, the accused persons initiated a plea agreement negotiation with the DPP.
This resulted in an agreement to restore the parcel of land to the Government. At the time of conclusion ofthis case, the parcel of land was valued at KShs. 700 million.
The ODPP recognizes that corruption offences are complex in nature and in most instances, it becomesdifficult to conclude criminal cases instituted in court expeditiously due to the large number of witnesses,
accused persons and voluminous documents involved in proving the case. Secondly, in some instances, it isdifficult to have witnesses who are not tainted with acts of corruption making them possible suspects in thecase. In such cases, the ODPP considers the approach of “Using the small fish, to catch the big fish” in orderto strengthen the prosecution’s case and hold the most culpable to account.
Interestingly, section 5 of ACECA also gives the trial magistrates the power to obtain evidence from any
person either directly or indirectly involved in an offence and pardon such person on condition that he or she
makes full and true disclosure of the circumstances within his or her knowledge in relation to the offence.
This section, however, is yet to be actively utilized in corruption matters.
B. Freezing, Seizing and Confiscation of Proceeds of Crime and Money-Laundering and Asset Recovery
Section 53 of the POCAMLA established the Asset Recovery Agency that is mandated to handle criminal
forfeiture provided under Part VII and civil forfeiture provided under part VIII of the Act.
The difference between criminal and civil forfeiture is that criminal forfeiture proceedings are based oninvestigations and/or prosecutions of criminal offences that lead to acquisition of proceeds of crime ormoney-laundering. Upon conviction of a defendant on the predicate offence(s), the court convicting theaccused/defendant, upon application of the Attorney-General, the Asset Recovery Agency or on its own
motion, inquires into any benefit which the accused/defendant may have acquired through the offence or
criminal activity and if found that the accused/defendant benefited, the court in addition to any punishment
imposed makes a confiscation order.37
Prior to conviction and/or charging of suspects, the Agency may also apply for ex parte restraining
orders/preservation orders to preserve properties suspected to be proceeds of crime or money-laundering.
These orders are issued by court upon being satisfied that there are criminal investigations in regard to an
offence, or reason to believe that a person leads a criminal lifestyle and has benefited from his criminal
conduct.38
Civil forfeiture on the other hand provided for under section 81 to 99 of the POCAMLA deals with
unexplained assets. Unlike criminal forfeiture, which is anchored on predicate offences, civil forfeiture isbased on evidence that a person is in possession of assets that are not commensurate to his earning(unexplained assets). These proceeds are instituted by the Asset Recovery Agency in the High Court where
upon conclusion, the assets are confiscated if the court is convinced that the defendant failed to prove how
he or she acquired the assets.
Aside from the ARA, the EACC also has powers to investigate and commence forfeiture proceedings of
unexplained assets and apply for orders of preservation of suspect property.39 Civil Forfeiture proceeds,
therefore, provide for non-conviction-based confiscation of proceeds of crime.
Proceedings under civil forfeiture and criminal forfeiture are considered to be civil in nature and, therefore,
unlike criminal proceeds, the burden of proof is on a balance of probability.40

36

Anti-Corruption Case No. 2 of 2012.
POCAMLA, Section 61.
38
Ibid, section 68.
39
ACECA No.3 of 2003, Section 55 and 56.
40
POCAMLA No. 9 of 2009, Section 56(1) and 81(1).
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VI. INTERNATIONAL COOPERATION
Mutual legal assistance (MLA) in Kenya is governed by the Mutual Legal Assistance Act41 which provides
for giving and received by Kenya information in regard to investigations, prosecutions and judicial proceedings
touching on criminal matters. In addition to the MLA Act, POCAMLA provides for international assistancein investigations and proceedings under section 114 to 120 of the Act. The Attorney General (A.G) of the
Republic of Kenya is the central authority, while competent authorities are made up of the A.G, criminal
investigation agencies and any person or authority designated by the A.G by notice in the Gazette.42 As
provided for in the MLA Act, ARA, EACC and DCI are competent authorities being investigative agencies.
The EACC has the power to cooperate and collaborate with other state organs and agencies, foreign
governments, international or regional organizations in the prevention and investigation of corruption.43 In
addition, the DCI’s functions include collection and providing of criminal intelligence and coordinating thecountry’s Interpol Affairs.44
In 2013, the Director of Public Prosecution was designated by virtue of a Gazette Notice No. 1847 by theA.G as a Competent Authority for purpose of processing requests in respect of MLA in criminal matters
being the prosecutorial authority in Kenya as provided for under Article 157 of the Constitution.
Recognizing that international relations are key in enhancing MLA, the ODPP has enhanced its regional
and international cooperation to strengthen its capacity in facilitation of MLA and Extradition. To begin with,
the Office has enhanced collaborative engagements with prosecutorial authorities and professional networks
which include the East Africa Association of Prosecutors (EAAP), International Association of Prosecutors(IAP) and the Africa Prosecutors Association (APA).
The EAAP is made up of prosecution authorities from Kenya, Rwanda, Burundi, South Sudan, Tanzania,
Uganda, Ethiopia, DRC, Malawi, Mozambique and Zambia whose objective is to promote and facilitate
cooperation among members in detection, investigations and prosecution of crimes in the Region and offering
legal assistance to its members.
In addition, the ODPP actively participates in the IAP established with the aim of fighting transnational
crimes such as drug trafficking, money-laundering and fraud. In May this year, the ODPP Kenya hosted theInternational Association of Prosecutors 4th Regional Conference of Africa and Indian Ocean and the East
Africa Association of Prosecutors Conference 2022. The theme of the conference was “Effective Mechanisms
to Respond to Emerging Crimes and Transnational Organize Crime in Africa: Country Experiences andChallenges”. The conference was attended by prosecutors and actors within the criminal justice system
across the globe saw participants discuss, among other topics, the best practices in the tracing, recovery andforfeiture of illicit funds held in crypto-currencies and harmonization of asset recovery legal frameworks.
Through international and regional cooperation, the ODPP has entered into Memorandums of Understanding(MoUs) to enable provision of informal information sharing and cooperation, which is key in facilitating
expeditious acquisition of information through MLA.
In addition, the ODPP has partnered with various development partners such as the European Union(EU), the United States Department of Justice (USDOJ), the British High Commission (BHC) among others
that have played a key role in training of ODPP prosecutors and other agencies in regard to the MLA
processed in their country and providing advice on acquiring expeditious MLA.
The ODPP in execution of its mandate also has the Anti-Money Laundering and Asset Forfeiture Divisionthat facilitates MLA. In the case of Director of Public Prosecutions vs Chrysanthus Barnabas Okemo & 4
Others,45 the supreme court confirmed that the ODPP is a lead agency in extradition matters in Kenya.
41

Act No. 36 of 2011.
Ibid, section 2.
43
Ethics and Anti-Corruption Commission Act No. 22 of 2011, section 11(3).
44National Police Service Act No. 11A of 2011 of the Laws of Kenya, Section 35(a) and (i).
45
(Petition 14 of 2020) [2021] KESC 13[KLR].
42

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A successful case study involving MLA is the case of Republic v Grace Sarapay Wahkungu & 2 Others.46
The accused persons among them being the then Sirisia Member of Parliament, being directors of Erad
Supplies and General Contractors Limited were charged with an offence of uttering a false document contract
to section 353 as read with Section 349 of the Penal Code Cap 63 of the Laws of Kenya, perjury contrary tosection 108(1) as read with section 110 of the Penal Code and fraudulent acquisition of public property
contrary to section 45(1) as read with section 48(1) of the ACECA 2003.
The brief facts of the case were that the company fraudulently uttered a false invoice for the sum of US
Dollars 1,146,000 as evidence to the arbitration dispute between Erad Suppliers and General Contractors
Limited and National Cereal and Produce Board in Kenya purporting to be an invoice supporting a claim forcost of storage of 40,000 metric tonnes of white maize allegedly incurred by Chelsea Freight. Due to this, theCompany acquired public property in terms of payments made thereto of Ksh. 297,086,505 allegedly incurredby Chelsea Freight on 19 March 2013, Ksh. 13,364,671.40 purporting to be the cost of storage of 40,000 metrictonnes of white maize on 27 June 2013 allegedly incurred by Chelsea Freight and loss of profit and interest
and US Dollars 24,032.00 purported to be the cost of storage of 40,000 metric tonnes of white maize allegedly
incurred by Chelsea Freight and loss of profit and interest on 2 July 2013.
Part of the evidence submitted in court by the DPP to prove the charges against the accused persons
was acquired by the Investigating Officer from EACC through MLA from the Republic of South Africa in abid to verify the existence of two companies of interest, namely Chelsea Freight and Ropack International,
alleged to be domiciled in South Africa. Through MLA, the Investigating Officer managed to contact thedirectors of Chelsea Freight who denied having dealt with Erad Suppliers and General Contractors Limited,
the third accused in the matter. The South African police also confirmed through MLA that some persons
of interest alleged to have been domiciled in South Africa were not in South Africa. The witnesses fromSouth Africa also testified in court in regard to the findings of the investigating officer acquired through
MLA.
Upon conclusion of the matter, the accused persons were found guilty of the offences and convictedaccordingly.

VII. STRATEGIES ADOPTED IN PROSECUTION AND INVESTIGATION OF
CORRUPTION AND MONEY-LAUNDERING CASES IN KENYA
Some of the measures implemented in Kenya for effective prosecution and investigations of corruption
are:
A. Development of Policies and Guidelines
The Guidelines on the Decision to Charge 2019, Plea Bargain Guidelines and Explanatory Notes 2019 andthe Diversion Policy and Guidelines 2019 have been key policy documents in guiding prosecutors on theevidentiary threshold to be met prior to making the decision to charge and providing guidance on theapplication of plea bargaining and diversion in criminal matters. This has led to institution of watertightcases in court with high chances of success and has increased our conviction rates in corruption cases.
In addition, implementation of plea bargaining and diversion as alternatives to prosecution has encouraged
expeditious conclusion of minor corruption cases, which in turn has created more room for hearing anddetermination of complex cases.
B. Inter-Agency Collaboration and Cooperation
The ODPP has been part of multi-agency teams consisting of various investigative agencies from the
EACC, DCI, Kenya Revenue Authority (KRA) among other agencies conducting prosecution guided
investigations so as to ensure that investigations of anti-corruption and money-laundering matters areconcluded expeditiously while ensuring that the same meet the evidentiary threshold.
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C. Establishment of Special Anti-Corruption Courts
Section 3 of ACECA requires the Chief Justice of Kenya to appoint and gazette special magistrates tohear and determine cases on offences of corruption, bribery, economic crimes and related offences. In linewith this provision, the Judiciary of Kenya established the Chief Magistrate Anti-Corruption Division whose
mandate is to hear and determine the cases prescribed in the Act.
Further, in 2015, the then Chief Justice of the Supreme Court of Kenya Hon. Dr. Willy Mutunga establishedvide gazette notice No. 9123 the High Court Anti-Corruption Division to hear and determine all Constitutional
Petitions, revision applications and appeals arising from offences of corruption, economic crimes and related
offences. The Court also handles matters filed in relation to criminal and civil forfeiture provided under
POCAMLA.
The judges and magistrates in these divisions are specially trained to handle such matters making judicial
the process more efficient and expeditious.
D. Specialized Training of Prosecutors
The ODPP through its Prosecution Training Institute (PTI) has collaborated with various stakeholders
and partners in providing specialized trainings to prosecutors on various thematic areas among them beingtransnational and economic crimes.
E. Use of Experts
The ODPP and Investigative Agencies recruit and consult experts in various fields such as financial,forensics and fraud to assist in technical areas of investigations and advice on areas of focus during prosecutionof the case.
F. Preventive and Deterrence Measures
These are measures implemented in recognition that investigations into corruption, economic crimes andmoney-laundering offences are complex in nature and ordinarily take a long time to conclude and prosecute.
For this reason, alternative measures are considered to disrupt the commission and/or furtherance of suchoffences. One of the measures implemented in the country is the investigation and prosecution of matterssuch as tax offences investigated by the KRA which are likely to be investigated and concluded much fasterthan other predicate offences.
Other strategies adopted are as discussed above such as international cooperation and witness facilitationthat have been effective in regard to MLA and Extradition and ensuring that witnesses are available for thecases.

VIII. CHALLENGES IN IDENTIFYING, TRACING, FREEZING, SEIZING,CONFISCATING AND RECOVERING PROCEEDS OF CORRUPTION AND
SOLUTIONS
Challenges faced in regard to investigations conducted in identifying, tracing, freezing, seizing, confiscating
and recovering proceeds of corruption and prosecution of the same are:i. Limited capacity in expertise and resources.
ii. Slow processes in identification of proceeds of crime outside the country.
iii. Inadequate legislation especially in regard to handling of state officers suspected and or charged withoffences related to proceeds of crime as they remain in office even after being charged.
iv. Inadequate funds for the protection and facilitation of witnesses.
v. Inadequate utilization of technology in the identification, tracing, freezing, seizing, confiscating and71

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recovery of proceeds of corruption.
Although Kenya has enacted various statutes in this regard, more needs to be done on the legal frameworks
in order to seal the loopholes hindering effective investigations and prosecution. Further, there is need formore international cooperation and collaborations and funding towards the war against corruption.
References
A. Primary Sources
United Nations Convention Against Transnational Organized Crime, 2000
i.
ii.
The United Nation Convention against Corruption (UNCAC), 2003
iii.
African Union Convention on Prevention and Combating Corruption, 2003
The Criminal Procedure Code, Cap 75 of the Laws of Kenya
iv.
v.
The Evidence Act, Cap 80 of the Laws of Kenya
Anti-Corruption and Economic Crimes Act No. 3 of 2003
vi.
vii.
Witness Protection Act No. 16 of 2006
viii. Proceeds of Crime and Money Laundering Act No. 9 of 2009
The Constitution of Kenya, 2010ix.
x.
National Police Service Act No. 11A of 2011
Ethics and Anti-Corruption Commission Act No. 22 of 2011
xi.
xii.
Mutual Legal Assistant Act, No. 36 of 2011xiii. Office of the Director of Public Prosecutions Act No. 2 of 2013xiv. Victim Protection Act No. 17 of 2014
xv.
Public Procurement and Asset Disposal Act No. 33 of 2015
xvi. Bribery Act No. 47 of 2016
B. Secondary Sources
Guidelines on the Decision to Charge, 2019
i.
ii.
Plea Bargain Guidelines and explanatory notes, 2019
Diversion policy and guidelines, 2019iii.
iv.
http://kenyalaw.org/treaties/treaties/129/United-Nations-Convention-against-Corruption
http://kenyalaw.org/treaties/treaties/142/United-Nations-Convention-against-Transnationalv.
Organizedvi.
http://kenyalaw.org/treaties/treaties/38/African-Union-Convention-on-Preventing-and-Combating
C. Case Law
i.
Michael Sistu Mwaura Kamau & 12 others v Ethics and Anti-Corruption Commission & 4 others[2016] eKLR
ii.
Philomena Mbete Mwilu v Director of Public Prosecutions & 3 others; Stanley Muluvi Kiima(Interested Party); International Commission of Jurists Kenya Chapter (Amicus Curiae) [2019] eKLR
iii.
Daniel Ogwoka Manduku v Director of Public Prosecutions & 2 others [2019] eKLR
iv.
Family Bank Limited & 2 Others -vs- Director of Public Prosecutions & 2 Others [2018] eKLRHigh Court Anti-Corruption and Economic Crimes Miscellaneous Case No. 23 of 2020 Hon. Mbuvi
v.
Gidion Kioko Mike Sonko & Others -vs- the DPP & OthersHigh Court Anti-Corruption and Economic Crimes Revision No. E005 of 2021 Director of Public
vi.
Prosecution -vs- The Chief Magistrate Court Milimani Anti-Corruption Division & 18 Interested
Partiesvii.
Anti-Corruption Case No. 306 of 2016 Republic vs Family Bank Limited and 7 Othersviii. Anti-Corruption Case No. 2 of 2012Republic vs Jackson Mbute Mbugua and 5 Others
Director of Public Prosecutions vs Chrysanthus Barnabas Okemo & 4 Others (Petition 14 of 2020)
ix.
[2021] KESC 13[KLR]
Anti-Corruption Case No. 31 of 2018 [2020] eKLR Republic v Grace Sarapay Wahkungu & 2 Othersx.

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